State v. Mizell

• Decision Date: 20 July 1998
• Docket Number: No. 2872.,2872.
• Citation: 332 S.C. 273,504 S.E.2d 338
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. William Rawls MIZELL, Appellant.

332 S.C. 273

504 S.E.2d 338

The STATE, Respondent, v. William Rawls MIZELL, Appellant.

No. 2872.

Court of Appeals of South Carolina.

Submitted June 2, 1998.

Decided July 20, 1998.

Rehearing Denied September 18, 1998.

William I. Diggs, Myrtle Beach, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Columbia; and Solicitor Ralph J. Wilson, Conway, for respondent.

ANDERSON, Judge:

William Rawls Mizell was convicted of committing a lewd act upon a minor child, first degree criminal sexual conduct (CSC) with a minor, and second degree CSC with a minor. The trial judge sentenced Mizell to five years for committing a lewd act upon a minor child; twenty years for first degree CSC with a minor; and fifteen years for second degree CSC with a minor, to run concurrently. We affirm.¹

FACTS/PROCEDURAL BACKGROUND

William Mizell (Mizell) married Vanessa Mizell in 1990. Christina Baker, Mrs. Mizell's daughter from a previous marriage, lived with them. According to Christina, when she was nine years old, Mizell "started feeling" on her chest. When Christina was "about nine and a half or ten" years old, Mizell would go into Christina's bedroom in the middle of the night when she was sleeping, put his hand down her panties, and stick his finger inside her vagina. This occurred approximately once or twice per week. After Mizell started "fingering" Christina, she told her best friend, Katie Peterson, but asked Katie not to tell anyone. Mizell also tried to get Christina to "feel on him" and "feel on" herself. Mizell warned Christina not to tell anyone about the abuse because no one would believe her. When Christina was twelve years old, she reported the abuse to her best friend's mother.

On August 31, 1995, Dr. Carol Rahter observed Amanda Steck interviewing Christina. On that same day, Dr. Rahter conducted a physical examination of Christina. Dr. Rahter's "feeling at the end of both the witness interview and the exam was that [Christina] had been a victim of sexual abuse, specifically digital penetration."

ISSUES

I. Did the trial court err in refusing to allow Mizell to present at trial character evidence of his reputation for truthfulness and veracity?

II. Did the trial court err in allowing the State to present reply testimony?

LAW/ANALYSIS

I. Rule 404(a)(1), SCRE

Mizell argues the trial court erred in refusing to allow him to introduce evidence of his reputation for truthfulness and veracity. He claims he offered this character evidence as "a legitimate and relevant part of" his defense to the charges against him.

Mizell did not testify at trial. However, he presented evidence from several friends and neighbors that he was a good family man and his reputation and character in the community were excellent. During the direct examination of one witness, Nancy McDonaugh, defense counsel asked McDonaugh if she knew Mizell's reputation in the community for truthfulness. She testified he had never lied to her and she was not aware of any reputation that he was a liar.

The State objected to the line of questioning and the court conducted a hearing outside the presence of the jury. Defense counsel argued he could present evidence concerning the defendant's reputation for truth and veracity without the defendant taking the stand. After a review of the South Carolina Rules of Evidence, the court held it would not allow any more testimony concerning Mizell's reputation or character for truthfulness or veracity in the community until he took the stand and it was placed in issue. However, the court ruled the defense could introduce evidence relating to a particular character trait that was an element of the crime charged. Defense counsel made a proffer that each defense witness was ready to testify to Mizell's good reputation for truthfulness and veracity in the community. The court instructed the jury to disregard McDonaugh's testimony regarding Mizell's reputation for truthfulness.

To evaluate the propriety of the trial court's decision not to allow Mizell to present evidence of his character for truthfulness, we look first to the language of Rule 404(a)(1) of the South Carolina Rules of Evidence,² which provides as follows:

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.

Thus, subsection (1) provides an exception to the general rule that character evidence is not admissible at criminal trials. Rule 404(a)(1), SCRE, is identical to the federal rule and is consistent with the law in South Carolina. Rule 404(a)(1) note, SCRE.

Under the South Carolina rule, like the federal rule, the accused may introduce evidence as to a pertinent trait of his character regardless of whether or not the accused testifies at trial. See Michael H. Graham, Handbook of Federal Evidence, Commentary to Federal Rule of Evidence 404(a)(1) (4th ed.1996); 29 Am.Jur.2d Evidence § 367 (1994). Rule 404(a)(1) permits such evidence when a defendant demonstrates he or she possesses a character trait that relates to the alleged offense—a "pertinent" trait of his or her character. See People v. Miller, 890 P.2d 84 (Colo.1995)

.³

See also Fred Warren Bennett, Is the Witness Believable? A New Look at Truth and Veracity Character Evidence and Bad Acts Relevant to Truthfulness in a Criminal Case, 9 St. Thomas L.Rev. 569 (1997) (criminal defendant may offer evidence of pertinent trait of his character to support inference he was unlikely to have committed charged crime).

Several courts have interpreted the word "pertinent" to be synonymous with "relevant." See United States v. Angelini, 678 F.2d 380 (1st Cir.1982)

; United States v. Hewitt, 634 F.2d 277 (5th Cir.1981); United States v. Staggs, 553 F.2d 1073 (7th Cir.1977). Accordingly, those courts approach the Issue of whether a trait is "pertinent" by deciding whether "the character trait in question would make any fact `of consequence to the determination' of the case more or less probable than it would be without evidence of the trait." Angelini, 678 F.2d at 381. See also Russell G. Donaldson, Annotation, When is Evidence of Trait of Accused's Character "Pertinent" for Purposes of Admissibility Under Rule 404(a)(1) of the Federal Rules of Evidence, 49 A.L.R.Fed. 478 (1980) (word "pertinent" has been held to mean same as "relevant"; admissibility of evidence of accused's character depends on whether character trait shown would be relevant to make more or less probable guilt or innocence of accused as to particular crime charged).

Other courts have expressed the requirement somewhat differently, holding that for character evidence to be "pertinent," "some nexus should exist between the particular evidence offered and the crime charged." State v. Oliviera, 534 A.2d 867, 869 (R.I.1987) (evidence is "pertinent" if it would "logically influence the issue"). See also United States v. Darland, 626 F.2d 1235 (5th Cir.1980)

(evidence of person's character or of trait of his character is admissible if it is evidence of "pertinent trait" in light of elements of offense charged); Edwards v. United States, 374 F.2d 24 (10th Cir. 1966) (character trait as to which evidence is admissible must be relevant to trait of character at issue and bear analogy and reference to nature of charge); State v. Brown, 592 A.2d 163 (Me.1991) (trait is "pertinent" if existence or nonexistence of trait would be involved in commission or noncommission of particular crime charged); State v. Collins, 345 N.C. 170, 478 S.E.2d 191 (1996) (Rule 404(a)(1) provides a defendant may offer character evidence as long as he tailors it to a particular trait that is relevant to an issue in the case; in context of rule, "pertinent" is tantamount to relevant); State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989) (to be admissible as "pertinent" trait of character, trait must bear special relationship to or be involved in crime charged).

In whatever manner the requirement is formulated, the "prevailing view is that only pertinent traits—those involved in the offense charged—are provable." John W. Strong, McCormick on Evidence § 191, at 813-14 (4th ed.1992) (footnotes omitted), citing the following examples: United States v. Jackson, 588 F.2d 1046 (5th Cir.1979) (truthfulness not "pertinent" to narcotics charges); State v. Howland, 157 Kan. 11, 138 P.2d 424 (1943) (veracity not "pertinent" to rape charge); State v. Hortman, 207 Neb. 393, 299 N.W.2d 187 (1980) (veracity not "pertinent" to charges of assault and abuse of incompetent). See also Fed.R.Evid. 404(a) advisory committee's note (1988) ("The limitation to pertinent traits of character, rather than character generally, in paragraphs (1) and (2) is in accordance with the prevailing view."); Lori J. Henkel, Annotation, Admissibility of Evidence of Pertinent Trait Under Rule 404(a) of the Uniform Rules of Evidence, 56 A.L.R.4th 402, 409 (1987) ("In determining the admissibility of evidence of an accused's character under Rule 404(a)(1), an initial consideration has been the relationship of the trait to the offense with which the defendant was charged."). Evidence which is not pertinent is inadmissible because Federal Rule of Evidence 404 forbids its introduction as circumstantial evidence of innocence of a charged offense. 29 Am.Jur.2d Evidence § 368 (1994).

With few exceptions, federal and state courts have permitted defendants to introduce evidence of their law-abiding character. See, e.g., Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948)

; United States v. Angelini, 678 F.2d 380 (1st Cir.1982); United States v. Hewitt, 634 F.2d 277 (5th Cir.1981);...